Saturday, February 18, 2006


Christiansen v. Union Pac. R.R. Co., 2006 IT App 117

Christiansen worked for Union Pacific in 1951 installing and removing asbestos containing components. In 1995 he retired because of breathing problems and went on disability. Although he suspected asbestosis, doctors diagnosed him with congestion, pneumonia, and other non-asbestos related conditions. In 2002, Christiansen filed suit against Union Pacific for negligence. Later that year he was diagnosed with asbestosis.

The trial court granted summary judgment Union Pacific’s claim that the three-year statute of limitations for FELA (Federal Employer’s Liability Act) claims had run. It denied Union Pacific’s motion for summary judgment on the merits.


(1) FELA negligence claims impose a lighter burden on plaintiff’s than ordinary negligence claims. The plaintiff need only show “slight negligence.” Christensen proffered sufficient evidence of negligence, by way of an affidavit from an asbestos expert, to survive summary judgment on the merits.
(2) The parties agree on the facts as they related to summary judgment, but disagree on their interpretation. The proper interpretation of the facts should therefore be left to the factfinder, and summary judgment was inappropriate.

Johnson v. Utah Dep’t of Trans., 2006 UT 15

Johnson sued UDOT for injuries resulting from an auto accident in a construction zone on I-15. The accident occurred, in part, because UDOT used orange barrels to mark the construction zone rather than concrete barriers.

Both parties agreed that UDOT’s action qualified for blanket immunity under the Governmental Immunity Act but that section 63-30-8 waived that immunity. So the only question was whether UDOT’s action qualified for the "discretionary function exception" to the immunity waiver. That exception applies when "the injury arises out of, in connection with, or results from . . . the exercise or performance or the failure to exercise or perform a discretionary function." The supreme court held that UDOT's decision was not a discretionary function.

Using the Little test, the court determined that UDOT had not shown that it’s decision was a policy decision essential to completion of the construction project. Rather, it was the unilateral action of a single employee without analysis or deliberation. It thus constituted a operational function, not a discretionary function.

Fordham v. Oldroyd, 2006 UT App 50

Utah joins the majority of states in adopting the professional-rescuer doctrine. That doctrine, elsewhere known as the “firefighter’s rule” or the “public safety officer rule,” bars a professional rescuer from recovering damages for injuries sustained while responding to a crises, from the person who negligently created the crises.

An example would go something like this: Citizen does something negligent that puts him in peril—a fire, an auto accident, etc. Police Officer responds to render assistance and, while assisting Citizen, is injured. Under the professional-rescuer doctrine, Police Officer cannot sue Citizen for negligence.

But the doctrine as adopted by the court of appeals is somewhat narrower than my example. The court only barred recovery for injury caused by the initial negligence that brought the professional to the scene. Fordham’s case is instructive.

Oldroyd lost control of his car on an icy freeway off-ramp and crashed. Fordham, a Utah Highway Patrol trooper, responded to the accident. While Fordham was getting some flares out of the trunk of his cruiser, he was struck by another driver who lost control of her car on the ice (Note: when it snowed earlier this week, there were over 600 accidents in Utah, including 265 in Salt Lake County—everybody needs to slow down or stay off the road).

Fordham sued and recovered from the driver who hit him. He also sued Oldroyd. But under the rule adopted by the court of appeals, Oldroyd is not liable for Fordham’s injuries. But Oldroyd would have been liable if he had acted negligently after Fordham arrived:
In reaching the conclusion that the professional-rescuer doctrine bars Fordham's claim against Oldroyd, we emphasize the doctrine's narrowness; it bars only recovery for the negligence that creates the need for the public safety officer's service. Therefore, the professional-rescuer doctrine does not apply to negligent conduct occurring after the police officer or firefighter arrives at the scene or to misconduct other than that which necessitates the officer's presence.


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